Defending judicial supremacy

At the Originalism Blog, legal scholar Michael Ramsey has an excellent post defending the idea of judicial supremacy in constitutional interpretation, responding to earlier posts by Michael Paulsen and Ed Whelan.

I agree with nearly all of Ramsey’s analysis. This part especially:

The idea that courts are to “expound and define [laws’] true meaning and operation” [as Alexander Hamilton explained in Federalist 22] necessarily encompasses a view of judicial supremacy. Hamilton does not appear to be talking about courts merely establishing a rule for themselves. Rather he sees court decisions as establishing a “uniform rule” for society as a whole – something that could not happen unless court decisions (especially decisions of the “one supreme tribunal”) were not regarded as authoritative statements of the law by other governmental actors….

In any event, I’m not persuaded that originalism doesn’t include a form of judicial supremacy. The alternative is every branch a law unto itself, which seems inconsistent with the framers’ idea of a written Constitution to check the branches’ tendency to wrongfully augment their power and of an independent judiciary to keep the political branches within their constitutional boundaries. To be sure, a privileged position for the judiciary binds the political branches to erroneous judicial interpretations at the expense of the true meaning of the Constitution, but it also allows courts to block erroneous political branch interpretations that undermine the true meaning of the Constitution. It’s not clear that the framers would have sacrificed the latter to avoid the former.

In Federalist 78, Hamilton also emphasized that “the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority” by the Constitution (emphasis added). Obviously, courts cannot keep the legislature “within the limits” if the legislature and executive are free to disregard judicial rulings striking down laws.

As Ramsey points out, the idea of judicial supremacy does not imply that judicial decisions are necessarily correct or that officials in other branches of government are forbidden to engage in constitutional interpretation of their own, and express opposition to interpretations adopted by judges. It only means that they must obey judicial decisions invalidating their laws or policies, and must follow the rules laid down in those decisions in similar future cases.

I would add that the case for judicial supremacy is bolstered by the likelihood that judges will, on average, have greater expertise in constitutional interpretation than officials in other branches of government. Because judges don’t have to run for reelection, they may also be less likely to subordinate constitutional principles to short-term political needs, or to give in to a crisis atmosphere. That doesn’t mean that judges will never make mistakes in constitutional cases. Far from it! But the rate of error is likely to be lower.

Many critics of judicial supremacy fear that it implies that federal judges could set themselves up as a kind of judicial oligarchy, overriding the will of the people whenever they wish. However, even under a regime of judicial supremacy, there are still many constraints on judicial power. Most obviously, the appointment and confirmation process ensure that most federal judges hold views that are not very far from the political “mainstream.” In addition, as a practical matter, judges are still reliant on assistance from the other branches of government in enforcing most of their rulings. And, even in a political culture that respects judicial supremacy, there are many ways for the other branches to drag their feet in implementing judicial decisions.

Finally, there is the risk that judges will make a ruling that would have catastrophic results if obeyed. For example, critics cite Lincoln’s refusal to follow the Dred Scott decision during the Civil War as a good example of a case where accepting judicial supremacy might lead to terrible results.

But, of course, there are comparable risks on the other side. If judicial supremacy is not accepted, terrible consequences might result from the other branches’ refusal to follow judicial decisions. For example, during World War II, the Roosevelt administration might well not have followed a judicial decision invalidating the internment of Japanese Americans. State (and, more rarely, federal) officials often failed to follow judicial decisions invalidating racial discrimination and segregation. Ultimately, any constitutional system carries risks. But those risks are lower if the executive and legislative branches must follow judicial decisions on constitutional issues, than if they don’t.

Finally, it’s worth emphasizing that judicial supremacy is a constitutional principle, not an absolute rule of political morality that always trumps competing considerations. There can be unusual cases where government officials are morally justified in violating the Constitution, including by disobeying judicial rulings. As Thomas Jefferson put it in defending his administration’s purchase of Louisiana (which he thought was unconstitutional), “A strict observance of the written laws is doubtless one of the highest duties of a good citizen, but it is not the highest. The laws of necessity, of self preservation, of saving the country when in danger are of higher obligation.”

Whether or not Jefferson was right about the Louisiana Purchase, his general point is correct. There can be rare cases where violations of the Constitution are justified, if that is the only way to prevent a great evil. For example, even if critics were right to claim that the Emancipation Proclamation was unconstitutional, Lincoln was still justified in adopting it, because slavery was such an enormous evil. But such exceptional cases should not lead us to reject the importance of adhering to the Constitution as a general rule – or to reject judicial supremacy.

UPDATE: I have made a few minor changes in phrasing, to improve clarity.

To argue, as Ramsey, Somin, and myself have, that the judiciary has the authority and, indeed, the duty, to nullify unconstitutional actions and that the other branches must adhere to its judgments is not to make the judiciary supreme over the other branches but, rather, co-equal. Paulsen and Whelan would deprive the judiciary of a power that every other branch possesses–that is, the power to serve as a check against the exercise of potentially unconstitutional government action–and prevent it from guarding against a grave danger that it was designed to serve as a bulwark against.

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Ilya SominIlya Somin is Professor of Law at George Mason University. His research focuses on constitutional law, property law, and popular political participation. He is the author of "The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain" and "Democracy and Political Ignorance: Why Smaller Government is Smarter."

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